*1 Trust Gо. v. Park Guardian sale is resulting hereby from foreclosure ciency affirmed, with costs to plaintiff. J., Boyles, Wiest, But
Chandler, North, C. JJ., Sharpe, zel, Bushnell, concurred. SOTOMAYOR v. FORD MOTOR COMPANY. Compensation Injury Leprosy—Partial Workmen ’s —Hand — Disability Equally Divided Court. — compensation partial disability Award of for employee who an hand, suffered to his been continued in employment at favored work until discharged, eom- received ' pensation time, reemployed for a work favored leprosarium found to have and confined is affirmed equally divided court. Appeal Department Industry. of Labor (Docket Submitted October No. 44, Cal- 41,576.) January еndar No. Decided 5, 1942. Re- hearing denied 11, 1942. Sotomayor presented
Ramon against his claim Company Ford Motor injuries for for employ. sustained in petition defendant’s On for partial disability. for Award plaintiff. appeals. Defendant Affirmed equally divided court. plaintiff. Hill,&Welsh defendant. Starkey Jones, *2 & Doelle, of the award appeals from Defendant J. Starr, industry, Decem- entered and of labor department compensa- plaintiff further granting 1940, 27, ber tion disability. partial Such per week of $12.80 deputy commis- order an reversed award sioner compensation, on plaintiff denying further wages “was due plaintiff’s loss of ground that the leper nоt because being as confined disability forearm.” in his hand (sometimes August stated 14, about On employed 1929), September while 14, as the record plant, grinding in defendant’s piston machine aon experienced acci- plaintiff, workman, sustained His was to his hand. dental days returned to other work a few he and in treated, not compensable requiring hand. He lost of his use at continued favored work time and discharged later. he several months until plaintiff application for 1932, In filed October, January depart- compensation; 1933, and on the 23, plaintiff had ment determined that cident which arose out “suffered an ac- the course of his ’’ employment defendant, with said him awarded partial disability at the rate per payments beginning week, $12.80 such December appeal Payments 1932. No 29, taken. were February parties made until 23, 1934, when the en- supplemental agreement, approved by tered into a department, providing: hereby agreed opinion “And it is now that in parties disability of all the hereto, ended, has payment and that because thereof of all further suspended shall stand from and after February 15, MOTOR FORD V. SOTOMAYOR agreed if further further “It develop, this injuries hereafter shall from such petition rights agreement the bar shall com- and added department for such hear- may on the to; that pensation be entitled he bur- plaintiff bear petition ing shall of such determine shall proof, den facts,” according petition agreement returned pursuance of such In plant fa- and continued at defendant’s to work jobs, when June, 1937, one-hand work, vored removed and was have found to he was colony leper Hos- Marine at the United'States pital, confined has been Louisiana. He Carville, there ever since. petition filed
On about *3 compensation, alleging, part: in further petitioner represents “Tour that because atrophy of the accident of of there is the muscles arm with a and resultant effect on the nerves and muscles. That such condition was permanent progressive. and fort That in an ef- supplemental agree- aid in rehabilitation, February ment was entered into on 23, 1934, sus- pending payments petitioner employed by was Company the Ford Motor at such labor as he was perform able to 15, 1937. That from the injury present date of said and to the time and for balance of his life, he will suffer the greater to a extent than on date said award. employ- That since June, 1937, he has not had the contemplated by ment as the efforts of his rehabili- tation, and is entitled to from June 15, 1937, in accordance with the award heretofore ” (cid:127) entered. liability
Defendant filed denial of for further com- pensation, ground “disability (if on the that any) is not the result of an arising accidental employment,” and his in the'course of and ont approved judicata because res “case is
that the receipt 1934.” 23, settlement plaintiff, Dr. depositions of April 1940, 23, On McCreary at the were taken and Dr. Hasseltine, The matter hospital Louisiana. Carville, in marine deputy June, in commissioner before a was heard deposi- his as shown testified, Plaintiff defendant to work for returned when he tion, that, February, kind of same do he could not in light injury; that his work was as before work hanging pistons jobs, line, on the work, one-hand painting, doing up picking greasing machine some towels, picking up pieces of brass and machines, super- foremen or on several occasions steel; that complained not do that could intendents his work satisfactorily em- he was sent to the ployment changed work; to other office per paid in he the time of his $6.80 day grinding pistons; ill he when became that, day; pay his em- June, 1937, his $7.40 ployment with defendant when he became ceаsed sick with 1937. Plaintiff further June, testified: you signed supplemental “Q. At the time
agreement, you complete have the full did use your hand? got gets “A. I No, never had since hurt; I every day. worse you your greater “Q. a lesser Did have use of *4 right signing supplemental hand at the time of the agreement you securing than had at the time award?
“A. About the same. you any “Q. State whether or not have at time your use of had full hand since the date of the award. I
“A. have never had. Ill - FoBD MOTOR Co. V. SoTOMAYOR “ any difficulty you in the had if have Q. State your injured from the date of arm hand and use of present time. the award to the * * * My fingers are all crooked. “A. difficulty, any, yоu if have had “Q. State what injured your hand from the date in the award to the use of present time. pencil anything pick I
“A. I can’t hold a got up drop I hurt. I months after since two things my other and do “I use hand to write can’t * * * use to work. and can’t it freely? . you your left hand “Q. use Can anything. “A. Yes, your right legs ? How about and left “Q. “A. n * * * They right. are all your say you stretch that can’t out “Q. You injury you fingers have received, because that correct?
“A. Yes. “ injury you that the received Q. You have said in 1929 is same now was then. about the “A. It is the same.” McCreary hospital
Dr. of the marine staff testi- in fied, that had under his substance, been “continuously” and that he exam- observation injured plaintiff’s ined hand several times; that opinion plaintiff’s did not cause development; would not hasten its bearing leprosy; had no on the disease of the condition hand was about the as, same admitted to the better nor worse than, when he was hospital. McCreary Dr. testified: you please “Q. Will state the condition of his physical the time of examination? you
“A. There was a contraction of the hand, might say main-en-griffe, say a moderate as we leprosy, including fingers. atrophy all There was *5 the interosseous hand, of the muscles of the small and dry scaley, skin was muscles; the lumbrical pain complete tem- anesthesia
and there perature. the examina- time of use at the what “Q. State right arm. Sotomayor hand and had of his
tion Mr. limited rather hand would be “A. The use himself; effort dress with work; he could some for he there was dining tray going but room to the hold his could very strength in hand. I little inis arm; the about the don’t know * * * of the arm. hand instead by difficulty sustained Mr. Soto- “Q. Could you mayor him be caused time examined at the ** * trauma? itYes, “A. “Q. could. your knowledge not from whether or State history this same was caused case * # *
trauma. my knowledge, From I don’t know. “A. From years an interim of seven be- the tween there was record herе, his admission and lots of things happen.” could
Dr. medical director the United Hasseltine, Health Service the marine hos- States Public plaintiff’s pital, testified that would development lep- cause, nor would hasten the of, rosy; prob- scars hand were ably leprosy; something other caused than get permission surgeon gen- could from the eral travel on common carrier, attend- ant. Dr. Hasseltine further testified: your knowledge, you give “Q. From could any difficulty, Sotomayor reasons for if any, of Mr. * ** in the use hand? damage “A. resulting There is evidence of nerve fingers in contracture and loss of sensation fingers. in the hand and This interferes with the Sotomayor Ford Motor v. *6 certain and movements normal sense of fine muscular execution functions in the skin feeling dependent on the fingers. of the Sotomayor’s present Mr. condition Is “Q. * * # trauma? caused hand may definitely. It be I answer cannot “A. conditions, other trauma, caused * * * both. knowledge, you your in own “Q. state, Could Sotomayor, been if there has of Mr. the case your improvement examina- first in his hand since tion? any, questionable; improvement if The is “A. * * * slight negligible. is to be it so as effect, any, leprosy if have on would “Q. What injuries Mr. of the kind mentioned in the case of ** * Sotomayor? ’ disability.’ might deformity “A. It increase plaintiff, witness for Brietenbach,
Dr. who ex- him in December, 1932, testified: amined of the “Q. was condition hand What * # * time? complaint, history chief “A. to me. ‘His His motor sensory paralysis of and fore- we call sort of a claw arm. of a claw. What Sort My diagnosis trophic degen- hand. functional nerve and muscle eration due to * * * ‘‘ diagnosis I made. That was the you it “Q. The to the hand as examined you say that was— in would Injury “A. There were scars. occurred evidently of the hand, There were on his and there scars atrophy had been—in this order to cause hand. That muscles, what we call a claw ligaments. contraction of the And the muscles at' up that time had become smaller, somewhat degeneration arm there was some of the muscles. subjectively complained pain. Of That’s he course, subjective objectively, thing. And there evidently had been some sufficient which had fingers of his muscles from the gradually extended it made it and weakened up forearm, and into strength. certainly tried We he smaller, things Do up pick bim in the court. some have to you _ things judge some handed him remember, the hold them.” he even couldn’t being tested When again him. He examined Brietenbach. Dr. testified: appearance it hand, as far
“Q. But looked about the same? it. He I seen ever same as have “A. About the facility. manipulate The claw could * * * there. effect was hammer *7 Personally time I at the I have doubt “A. atrophy progressive he had a him that examined think think I didn’t nerve due to the muscles there was there was any I it, and didn’t doubt about again, any it I saw him about when doubt improve- any hope for I think there was didn’t and my expected just knowledge
ment, rather and might get things, progress, it even and of these ’’ worse. Hunter, defendant, Dr. witness testified treated in he examined and after diagnosed months treatment several as his illness leprosy. He further testified: you hand “Q. This claw us have told about that atrophy there is muscles there. “A. That'is a contracture of the tendons. The pulled on the tendons dorsum of the back in way phalanges— a as to over extend the first fingers, giving in first bone the and flex the others, appearance of a something It resembles claw._ paralysis. ulnar nerve leprosy you say leper- “Q. inNow it is known as claw? Co Sotomayob Motob Fobd v. Leper-claw.
“A. leprosy the nerves or affect does How “Q. hand? control of the gradu- leprosy involving nerves Well, “A. ally nerves produce on the an anesthetic effect trophic you get they paralyzed, de- become changes trophic generation, the tissues that in because or supplied by the nerves nerves, these were changed. the tissues is the nutrition of dead, are changes parts. trophic in it callWe you the claw hand that this Ho feel that “Q. was the result of a nerve due man has trauma? diagnosis I “A. I made the understood After clearly. just I the case At first didn’t understand causing in his hand. I couldn’t what was see anything scar or as evidence trauma to account pay great for to and I more attention it, didn’t deal finally diagnosis. I made the Then I picture very Symp could see the wholе clear. toms of the hand, ulcerations, anesthesia, facies, perfectly diagnosis lep all fit with the # * * rosy. “The Commissioner: And Ias understand the question proposed by Starkey Mr. substance this: Could this accident of 1929 either have caused precipitated the condition of found * * * May, 1937. “A. The would not have effect all *8 leprosy. on the versa, Vice the fact that he was developing leprosy may get have caused him to the injury. the anesthesia, Caused effects —anesthetic leprosy might on his hands and nerves due to make * * * susceptible him more you “Q. May, when Doctor, examined him in disability 1937, was there а in that hand?
“A. He had a claw hand effect, and I remember burning time, him himself all the time with cigarettes.” peti- plaintiff’s deputy denied commissioner
The saying: compensation, for further tion wages plaintiff’s loss because denied “Petition 500-week of the end until the 4, from June 1937? being- April his disability due to period, 1939, 26, to-wit, leper not because aas confined and forearm.” in his industry department of labor the review On deputy finding commissioner of the the reversed partial dis- compensation for plaintiff and awarded per 3, ability from June week the rate $12.80 at compensable period. of the 500-week to the end 1937, pаrt: opinion stated, The compensation brought proceedings he “In 1932 giv- January an award was entered 23,1933, and on per compensation ing week at the rate $12.80 him partial 1932, 29, from December department. The until further order of paid appealed com- from he was award was February pensation it was 1934, when 15, until supplemental agree- stopped with a in accordance recovered dis- had not his' ment. The from compensation stopped, ability but the time ioas at day by was returned to work on defendant favoring at condition. He continued work employment at June 3, defendant favored when he found to have and he has 1937, leper colony Carville, been confined in the since petition he filed a 3, 1939, Louisiana. On Deputy Commissioner for further petition denying entered an award McAuliffe upon and the before us matter is now claim for review. period “The seeks for the day employment of the last
by pensable period. defendant, until the end the 500-weekcom- leprosy is His not related to the accident and has caused his confinement in the *9 FORD V. MOTOR SOTOMAYOR colony. still has claw hand However, he a Louisiana resulting injury this condition is a nerve from disabling independent leprosy. in itself seriously disputed that the condition not It is disabling, is but the defendant contends that was leprosy beginning to the onset of and not due injury. opinion, In to the accidental our the defend- position is the reason that ant’s question not tenable for already adjudicated. The has been award January final entered was a determination plaintiff’s disability that the at that time was due to his accident. as this case is concerned the Insofar disability namely, then was same it is now, a resulting claw hand a nerve To find at this time that such was not related to the accident would be to reverse a former award grant rehearing; privileged and to this arewe not to do. clearly apparent “If it was this time that the plaintiff’s leprosy cause disabled hand was might
not his accident, we
have
same situation
presented
that was
in the case of Romanchuk v.
Co.,
Ford Motor
n compensation.” department December entered of order the The part: provided, in 1940, 27, by department having the been heard “This cause plaintiff of appeal the award from on September 1940, deputy 9, entered commissioner compensation plaintiff; due denying after con- to the arguments and the taken of the evidence sideration having (the department made counsel briefs of appearing law) finding to this and it of facts and a aforesaid, department made, as award that reversed; should be of ordered, that award
“Therefore, is deputy same is be commissioner should paid plaintiff hereby be and that shall reversed partial defendant the at and per 1937, from week Junе of the rate $12.80 of the 500-week the end period.” appeal, having obtained leave con-
Defendant, compensa- (1) plaintiff should be denied tends wages his of is due to reason that loss tion (2) injury; rather than that the de- disease require industry, partment plaintiff by failing labor physical examination, to a de- to submit prived day in defendant of “its court.” department, by January
The
its
23, 1933,
award
app.eal
from which no
was taken, determined that
plaintiff
compensable
had suffered a
The
department, by
opinion
its
and award of December
27, 1940,
determined
“still
has
claw
resulting
from nerve
and this condi-
disabling
indepеndent
tion
leprosy.
in and of itself
his
’’
department
The
determined that
employ-
was continued
defendant at “favored
Motor Sotomayor
v. Ford
compensation was discontinued
the time
ment”
February,
work, because
ceased
1934, until-he
findings
leprous
1937. Such
condition,
supported by
com
were
of fact
testimony
review
We
petent
are conclusive.
Comp.
questions
fact,
not issues
of law but
17.186); Lynch
(Stat.
§
v.
§
Ann.
1929, 8451
Laws
Donahoe
1;
Mich.
Co., 297
Baker Construction
R. D.
City
v.
Neumeier
422;
Mich.
Co.,
Motor
v. Ford
Pontiac
v.
646;
293 Mich.
Smith
Menominee,
Motor
277 Mich.
Co.,
Car
*11
By working
employment” from Feb
at “favored
ruary, 1934,
3,
he was found
when
plaintiff
leprоsy,
did
to
establish a so-called
have
‘‘earning capacity”
employment
at his former
of
grinding pistons
work.
or at
other
The award
compensation
for
to
having
hand; and his
worked at
“favored em
such
ployment,” though
paid
he was
more than at the
injury,
time of his
does not
his
bar
com
to
pensation.
supra;
Smith v. Pontiac Motor Car Co.,
Murray v. Ford Motor Co.,
The fact that leper is confined in the colony by thereby pre- health authorities and is working employment” vented from at “favored does not defeat his to for his continuing liability pay The com- pensation partial disability for has been determined industry labor and and supervening resulting confinement does adjudicated not relieve defendant from lia- bility. In the case of Ward v. Heth Brothers, 212 Mich. plaintiff, receiving compensation while par- patient disability, mental as a was' committed
tial
to the
Hospital. The defendant
Kalamazoo State
payment of
petition
relieved from
to be
filed
plain-
compensation,
ground
incapacity
perform
work was
tiff’s
resulting
due to his diseased brain condition
hospitalization,
Mr.
and nоt to his accident.
Justice
writing
denying
for affirmance
the order
Stone,
petition,
p.
said,
defendant’s
198:
question
“Counsel
discuss the
liability
whether the
to
are
defendants
released
pay compensation
supervening
because of the
insanity
plaintiff;
they urge
argument
liability
pay compensation
that after the
has be
supervening
insanity
infirmity
come
fixed,
or
employer
will relieve the
insurer
liability
paying-
from the
according
to continue
McNally
made. And the
twoodv.
Blaenclydach Colliery
Wyken Colliery
v.
Furness,
following
terms
Withy
Co., 2
2Co., K. B.
cases are cited: Eaves v.
&
K. B.
Co., 3 K. B.
award as
[1909]
[1913]
originally,
73;
[1913]
Har
158;
(116
605;
Case,
Walsh’s
found to be thought thing some- good that and claimed reason matter.” the else introduce could defendant such decision Under plaintiff’s proof hand was due the condition leprosy and not to the accidental to his department, hearing proofs of after However, leprous that the continu- determined condition, tlie ing was due
disabled condition injury; fact and such determination of final. plaintiff, by failing
Defendant contends report physical Detroit for 1939', compen- examination, forfeited his to further that the failure sation, require plaintiff to submit to an examination de- complete prived hearing defendant a full and day and of “its in court.” Comp. (Stat.
Section Laws 1929 Ann. §17.169), provides: employee “After given injury, has notice of an provided by
as after act, this and from time to time there- during disability, the continuance of his he requested by employer, if shall, so or the in- company carrying’ surance or risk, the commis- may sioner of as the insurance, case be, submit him- physician self to an examination surgeon or practice authorized to under the medicine laws of paid State, furnished employer, company carrying insurance such risk, or the may commissiоner of insurance, the case be. The employee physician shall have the to have a provided paid present himself at the ex- If he amination. refuses submit himself for the *13 300 122 any way same, his obstructs inor examination, suspended, his and be shall to may period suspension during Any physician make be shall who
be forfeited. present required may be examination at testify results thereof.” to the oath as under February 25, about that on indicates record The leper colony, plaintiff re- confined in while 1939, ceived report from defendant citation notice or physical February ex- 28, 1939, on Detroit copy of the not contain record does amination. The satisfactory proof There is notice or citation. was issued or when was as to the same when hearing plaintiff. During the served on defendant’s counsel stated: February in- 23, 1939, citation dated “Our Kennedy, structing appear at 10 him before Dr. February Michigan,
Peterboro avenue, Detroit, 1939.” petition filed sworn for con- Plaintiff’s counsel part: tinuance, stated, which plaintiff, “Now comes the above-named one attorneys, respectfully Hill, Clarence Gr. unto shows the board * that he' is the above-named de fendant, full believes, informed and has knowledge leper that the of the fact is a Lepers’ Colony confined in the Carville, at Louisi February ana; that on, to-wit, 25, 1939, the said requiring received letter him to be in p. Detroit on 28 2 o’clock, m., at for an Kennedy examination Dr. Charles S. Peter boro street. petitioner “Your the above shows (counsel)
information was received wit, him to- on, arrange March 2, 1939, too time late * powers board, The duties industrial accident here re- to, ferred dustry have been transferred to labor in- Comp. and the board abolished. Laws See § (Stat. 17.3).—Reporter. Ann. § *14 mayor, v. Ford Motor Soto necessary be examination, an should such such for under practice of rules of this board * the law and hearing. a before petitioner prays board * to
“Your the con permit hearing cause the said a tinue on rea any deposition taking opportunity for the sonable necessary by.the parties may hereto be deemed hearing the cause the commissioner and/or and/or to under defendant is entitled such examination this case.” law in involved the willing that he was to submit Plaintiff testified physician, physical defendant’s examination to a provided under examination be made condi- such comply. he would be аble to So tions which only given as the shows, far three-days’ record preparations to make notice to re- port in Detroit for examination. He could leave leper colony only travel to Detroit after having permission surgeon gen- obtained from the accompanied by eral of the United if States, and physical apparently an attendant. im- It possibility report for for examina- tion 28, 1939, and he should not be penalized for his failure to do so. Plaintiff did not, above-quoted we under believe, statute, “refuse to submit himself or in examination, way obstruct the same.” The record shows no рhysical further effort defendant to obtain ex- plaintiff, though amination of year more than a elapsed between the service of the citation on Feb- ruary hearing deputy 25, 1939, and the before the commissioner on rely upon
Counsel
defendant
the case of Sauch
Corporation,
v. Studebaker
(41
mediсine properly employer requested the insurance his distinctly provides if he carrying company risk, any way ob- to ‘or submit himself to so refuses structs’ ‘shall be his examination during suspended,’ * * * ‘may suspension period be forfeited.’ qualifying exceptions or contains The statute *15 ’’ language. employee recognizes must that the decision Such employer requested in- “properly his be company” physical examina- to submit to surance present there case tion. conclude We requested” “properly proof is that defendant plaintiff to to such examination. submit supplemental agreеment parties
The between the plaintiff 23,1934, under which returned employment, to not, work-at favored is as contended judicata defendant, res to compensation. further department
The award of the is affirmed; plaintiff. to costs J., JJ.,
Chandler, C. North and Bushnell, J. Starr, concurred with sup- Boyles, J. There is no foundation fact to port finding department to the effect that plaintiff’s disability to continue work from and after June injury 3, 1937, was due to an accidental re- during ceived employment. the course of his A mere statement of the admitted facts shows a com- plete any testimony absence of support to such a finding. Motor v. Sotomayor Ford compensable plaintiff suffered In employee of defendant. an while thumb was in 1933 for defendant to work continued He arising disability partial compensation for awarded developed into had The of the accident. out In hand. claw record in the is referred what approved agreement filed, 1934 department, disability ended suspended. continued Plaintiff be Although until June defendant work for employment, plaintiff at that working favored any previous earning time. than at more time was compelled quit plaintiff work 3,1937, On By leper. reason to be a he was found beсause colony leper in Louisi- was removed to a thereof, he continuously since. ana where been confined he has undisputed It found— fact, —in except working that he could have continued for his leprosy. himself testified The he never any work missed to June which 3,1937, at leprosy. time he left because the doctor said he had receiving From 1934 to 1937 was not com- pensation finding and we have no dur- *16 ing period. readily distinguishable The case is Foundry from Neal v. Stuart 250 Co., Mich. 46, Ward v. Heth 212 Brothers, Mich. 180, where the receiving compensation partial for dis- ability employment when was terminated, and employеr petitioned in each case to be relieved compensation. from further In those of cases, loss (partial earnings disability) was still traceable to and the result of the accident. See, also, Barnot v. Ford Motor 282 Co., Mich. 37. In the case bar, at to the hand and the reason for termina- employment, tion of leprosy, viz: had no connection whatever with each other. The was not 300 to the the dis- injury,
caused or traceable or ability 3,1937, time previous had no connection with it possible leprosy. Were not for leprosy, plaintiff could have continued to worlc or similar at sаme at employment, the same higher wages, which there event would be basis for resumption a of compensation.
The award should be aside. set Wiest, Butzel, Sharpe, JJ., with concurred Boyles, J.
STRONG v. KITTENGER. Intersections—Contributory Negligence. 1. Automobiles — Normally, bright when two car's collide on day clear thoroughfares intersection equal of importance, of both drivers duty are to blame as becomes the of both drivers to slow down respect rights.- each other's Contributory Jury 2. Negligence Same — —Inter- Question — sections. Contributory negligence of driver plaintiff's car in which held, riding decedent question jury where such сar and defendants’ dry, ear collided at an intersection two graveled equal importance day visibility roads on a when the ’ was clear easterly and the view after unobstructed defendants driven car been seen decedent’s driver to have slowed give way down as if to him the but thereafter con n great speed tinued at as car so1 to collide northbound partially after it had middle of crossed the the intersection. contributory negli- causal Need of relation make aetor's conduct gence, Restatement, Torts, see Violation statute § contributory negligence, Restatement, Torts, see 469. Eunetion § jury question *17 contributory negligence, court 2 Re- see statement, Torts, §476; also, 289, 290 and comment n. §§